Jacinto-Castanon De Nolasco v. U.S. Immigration & Customs Enforcement
Jacinto-Castanon De Nolasco v. U.S. Immigration & Customs Enforcement
Opinion of the Court
The matter is before the Court on plaintiffs' motion for a preliminary injunction [Dkt. No. 2], requiring the United States government to immediately reunify plaintiff Alma Zuli Jacinto-Castanon de Nolasco with her nine-year-old son and her eleven-year-old son, from whom Ms. Jacinto-Castanon was forcibly separated shortly after crossing the United States-Mexico border over two months ago. Upon careful consideration of the parties' filings, the relevant legal authorities, the arguments of counsel at the hearing on July 12, 2018, and the entire record in this case, the Court granted plaintiffs' motion by separate Order yesterday, July 18, 2018. This Opinion explains the reasons for that Order.
I. BACKGROUND
A. Factual History
On April 6, 2018, the Attorney General of the United States announced a "zero-tolerance" immigration policy, under which all immigrant parents unlawfully crossing the United States-Mexico border with their young children would be subject to criminal prosecution and separated from *495their children. See Compl. ¶ 35. Following widespread criticism over the separation of immigrant families, on June 20, 2018, the President of the United States signed an Executive Order requiring immigrant parents and their children who are apprehended at the border to remain together during the pendency of their criminal or immigration proceedings, to the extent permitted by law. See Mot. at 9. The Executive Order did not, however, address the reunification of the more than 2,000 children whom the government had already separated from their parents. See id. at 9-10.
Plaintiffs in this action are Ms. Jacinto-Castanon and her two sons, who were forcibly separated after crossing the border prior to the issuance of the Executive Order on June 20, 2018. Ms. Jacinto-Castanon is presently detained in Arizona, while her sons are detained in California. Compl. ¶ 51. They are being held solely as civil immigration detainees and not in association with any criminal charge or conviction. Ms. Jacinto-Castanon has passed a credible fear interview - the first step in the asylum process. There is no evidence suggesting that Ms. Jacinto-Castanon is not the biological mother of her sons. Nor is there any suggestion that she is an unfit parent or poses a danger to her sons. In addition, Ms. Jacinto-Castanon's niece is a U.S. citizen who resides in North Carolina and has offered to sponsor Ms. Jacinto-Castanon and her sons during the pendency of Ms. Jacinto-Castanon's asylum proceedings. See Mot. Ex. 1, June 26, 2018 Jacinto-Castanon Aff. at ¶ 22.
In May 2018, after gang members murdered her husband and threatened to kill her and kidnap her children, Ms. Jacinto-Castanon and her sons fled Guatemala to pursue asylum in the United States. See Compl. ¶ 45. On May 14, 2018, they entered the United States near Lukeville, Arizona and told border agents that they intended to seek asylum. See id. at 1 and ¶ 46. Although they were initially detained together, the family was forcibly separated two days later on May 16, 2018. See id. ¶¶ 46-49. Ms. Jacinto-Castanon was taken to a court hearing that day and when she returned, her children were gone: "The immigration officers told me that my children had been taken away, but did not tell me where they were. The immigration officers stated that if the [g]overnment wanted to keep my children they would do so, and I would be deported alone and be forced to leave my sons behind." See Mot. Ex. 1, June 26, 2018 Jacinto-Castanon Aff. at ¶¶ 12-13. Unbeknownst to Ms. Jacinto-Castanon, her sons had been deemed "unaccompanied minors" because they had "no parent or legal guardian in the United States ... available to provide care and physical custody." Opp'n at 7. As a result, her sons were transferred to the custody of the Office of Refugee Resettlement ("ORR") and detained in a separate facility. See id.
*496Ms. Jacinto-Castanon later pled guilty to misdemeanor improper entry under
Ms. Jacinto-Castanon has not seen her sons since May 16, 2018. See Mot. Ex. 1, June 26, 2018 Jacinto-Castanon Aff. at ¶¶ 12-13. She believes that her sons are in a shelter in Los Angeles, California during the day, and then stay with an unrelated and unknown family at night. See
B. Procedural History
Plaintiffs brought suit on June 27, 2018 against certain federal agencies and officials responsible for enforcing immigration laws and regulations. See Compl. ¶¶ 12-27. The complaint alleges, inter alia, that plaintiffs' continued separation, absent a showing that Ms. Jacinto-Castanon is an unfit parent or otherwise presents a danger to her sons, violates their substantive due process right to family integrity under the Fifth Amendment to the United States Constitution. See
On June 27, 2018, plaintiffs filed a motion for a preliminary injunction seeking immediate reunification. The next day, plaintiffs filed a motion for an expedited hearing on their preliminary injunction motion, see Expedited Hearing Mot. at 1, which the Court granted on June 29, 2018. After the preliminary injunction motion was fully briefed, the Court held a hearing on the motion on July 12, 2018. At the hearing, counsel for defendants represented that Ms. Jacinto-Castanon's children are detained in a government-licensed facility during the day, where they receive religious services and various other services. He explained that the children stay with foster families in the evening. He further explained that upon reunification, defendants could: (1) detain Ms. Jacinto-Castanon and her sons together in a family residential facility pending asylum proceedings; (2) place the family with a sponsor - Ms. Jacinto-Castanon's U.S.-citizen niece in North Carolina - pending asylum proceedings; or (3) release Ms. Jacinto-Castanon on bond and with a monitoring device, such as an ankle bracelet, pending asylum proceedings.
Meanwhile, on June 26, 2018, Judge Dana M. Sabraw of the United States District Court for the Southern District of California issued a class-wide preliminary injunction requiring the government to reunify children under the age of five with their parents by July 10, 2018, and those age five and over by July 26, 2018. See Ms. L. v. U.S. Immigration and Customs Enf't,
*497have been, are, or will be detained in immigration custody by the [Department of Homeland Security ("DHS") ], and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody, absent a determination that the parent is unfit or presents a danger to the child."
II. LEGAL STANDARD
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. NRDC,
Before the Supreme Court's decision in Winter v. NRDC, courts weighed these factors on a "sliding scale," allowing "an unusually strong showing on one of the factors" to overcome a weaker showing on another. Damus v. Nielsen, No. 18-00578,
III. DISCUSSION
Ms. Jacinto-Castanon seeks a preliminary injunction directing defendants to immediately reunify her with her sons. For the reasons that follow, the Court finds that the circumstances presented here merit this extraordinary form of relief, and therefore has ordered defendants to reunify Ms. Jacinto-Castanon with her sons on or before midnight on Friday, July 20, 2018.
A. Threshold Matters
Before turning to the four preliminary injunction factors, the Court addresses *498three threshold matters. First, defendants contend that the Court lacks jurisdiction to grant the requested relief because plaintiffs have not pled a waiver of sovereign immunity. See Opp'n at 14-15. Section 702 of the Administrative Procedure Act ("APA"),
Second, defendants assert that plaintiffs are not in custody within the jurisdiction of this Court. Defendants argue that the Court therefore lacks jurisdiction to grant plaintiffs' request for a writ of habeas corpus. See Opp'n at 17-19. For purposes of this motion, however, the Court need not address plaintiffs' habeas corpus claim. The Court has federal-question jurisdiction under
Third, defendants suggest that the motion for a preliminary injunction is subject to a heightened standard, under which plaintiffs must "clearly" show that they are entitled to relief or that "extreme or very serious damage" will result from the denial of the injunction. See Opp'n at 10-11 (quoting Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi Ltd.,
The Court now turns to the four preliminary injunction factors.
B. The Four Preliminary Injunction Factors
Upon careful review of the parties' submissions, and in particular, the affidavit submitted by Ms. Jacinto-Castanon and *499the findings of medical experts studying the effects of immigration detention on young children, the Court concludes that Ms. Jacinto-Castanon and her sons easily meet their burden to show likely success on the merits and irreparable harm, and that the balance of equities and the public interest weigh in their favor, thus warranting issuance of a preliminary injunction.
1. Likelihood of Success on the Merits
While plaintiffs seeking a preliminary injunction have the burden of demonstrating likelihood of success on the merits, they are not required to prove their case in full at the preliminary injunction stage, but only such portions that enable them to obtain the injunctive relief that they seek. See Univ. of Texas v. Camenisch,
The Fifth Amendment mandates that no person shall "be deprived of life, liberty, or property, without due process of the law." U.S. CONST. amend. V. Due process protects noncitizens who are on U.S. soil. See Zadvydas v. Davis,
The Supreme Court has made clear that parents have a fundamental liberty interest in family integrity, and in the care, custody, and control of their children. See Troxel v. Granville,
Defendants respond that "[t]he extent of any right that parents may have in terms of a relationship with their children (or vice versa) necessarily depends on the circumstances of a particular case." Opp'n at 19. According to defendants, because Ms. Jacinto-Castanon is in lawful immigration custody, she is "unavailable to provide care and physical custody" for purposes of the TVPRA, and therefore custody of her sons must be transferred to ORR and they must be detained in a separate facility from their mother. See id. at 20. The Court disagrees. See supra at 495-96 n.2. The fact that Ms. Jacinto-Castanon is lawfully detained in immigration custody does not eliminate her due process right to family integrity. The statutes cited by defendants to separate Ms. Jacinto-Castanon from her sons explicitly require defendants to "promptly [place unaccompanied alien children] in the least restrictive setting that is in the best interest of the child."
Substantial governmental burdens on family integrity are subject to strict scrutiny review, and they survive only if the burden is narrowly tailored to serve a compelling state interest. See Goings v. Court Servs. & Offender Supervision Agency,
*501U.S. v. Godoy, No. 10-0016,
There is no question that defendants have directly and substantially burdened plaintiffs' right to family integrity. Defendants have continued to detain Ms. Jacinto-Castanon and her sons in separate facilities for many weeks with only periodic phone calls. See Jordan by Jordan v. Jackson,
While the need to protect children from unfit parents is a well-recognized compelling reason for burdening family integrity, defendants must make at least some showing of parental unfitness in order to establish such a compelling state interest. See Quilloin v. Walcott,
Defendants contend that the separation occurred because Ms. Jacinto-Castanon was subject to lawful prosecution under
While defendants have a legitimate interest in enforcing the immigration laws *502and deterring unlawful immigration, nothing in federal law suggests that deterring immigration by indefinitely separating families once the parents have been transferred to immigration custody is a compelling or legitimate government objective. Moreover, defendants' forced separation policy is overbroad because it equally deters both lawful and unlawful conduct. As Judge Boasberg recently put it in a related context: "[The government] maintains that one particular individual may be civilly detained for the sake of sending a message of deterrence to other Central American individuals who may be considering immigration. This appears to be out of line with analogous Supreme Court decisions." R.I.L-R v. Johnson,
For these reasons, the Court finds that Ms. Jacinto-Castanon and her sons likely will succeed on their substantive due process claim premised on their constitutional right to family integrity.
2. Irreparable Harm
As to whether plaintiffs are likely to suffer irreparable harm in the absence of preliminary relief, there can be no dispute. Ms. Jacinto-Castanon desperately wants to be reunited with her sons. She has offered overwhelming evidence in her own words and from medical experts describing the grave and lasting consequences of separating parents from their young children. Defendants have not attempted to refute this evidence. For good reason.
The record in this case demonstrates that Ms. Jacinto-Castanon's separation from her sons has been excruciating. She has not seen her sons in over two months. See Mot. Ex. 1, June 26, 2018 Jacinto-Castanon Aff. at ¶¶ 12-13. Beyond knowing the name and location of the shelter where they are held during the day, Ms. Jacinto-Castanon has little, if any, information about their health, well-being, or daily activities. As counsel for defendants explained at the July 12, 2018 hearing, her sons are detained in a government-licensed facility during the day, where they receive religious services and various other services. He further explained that the children stay with foster families in the evening. But Ms. Jacinto-Castanon has no specific information about the people who have had custody of her sons over the last two months.
In the few, fleeting telephone conversations she has been able to arrange with her sons, her youngest son "cries and tells [her] he has nightmares." Mot. Ex. 1, June 26, 2018 Jacinto-Castanon Aff. at ¶ 20. Both of her sons tell her that they are upset and afraid, and "wish they could be together as a family."
*503(describing violations of
The panic and desperation that Ms. Jacinto-Castanon has endured will no doubt sound familiar to anyone who has ever, even momentarily, lost sight of a child entrusted to his or her care. But counsel for plaintiffs have also offered evidence from medical experts describing the profound and long-term consequences that separation can have on a child's well-being, safety, and development. According to the American Academy of Pediatrics, "[t]he psychological distress, anxiety, and depression associated with separation from a parent would follow the children well after the immediate period of separation - even after the eventual reunification with a parent or other family." See Compl. ¶ 30 (citing Julie M. Linton, Marsha Griffin, Alan J. Shapiro, American Academy of Pediatrics Policy Statement, Detention of Immigrant Children, Pediatrics, Vol. 139, Num. 4, April 2017 ("Policy Statement") ). Detained immigrant children may experience high rates of post-traumatic stress disorder, anxiety, depression, and suicidal ideation, in addition to developmental delays or poor psychological adjustment. See Mot. at 9 (citing Policy Statement). "[H]ighly stressful experiences, like family separation, can ... disrupt[ ]a child's brain architecture and affect[ ] his or her short- and long-term health. This type of prolonged exposure to serious stress - known as toxic stress - can carry lifelong consequences for children." Reply at 6 (quoting American Academy of Pediatrics, AAP Statement Opposing Separation of Children and Parents at the Border, May 8, 2018, available at https://www.aap.org/en-us/about-the-aap/aap-press-room/Pages/StatementOpposingSeparationofChildrenandParents.aspx). Based on these concerns, the independent child advocate for Ms. Jacinto-Castanon's sons - appointed pursuant to the TVPRA - has determined that it is in the "best interest" of Ms. Jacinto-Castanon's sons to be "immediately reunified with their mother." See July 13, 2018 Status Report Ex. 1, July 6, 2018 Letter from Gladis Molina Alt at 2.
Separation irreparably harms plaintiffs every minute it persists. This evidence, combined with the constitutional violation alleged, shows that plaintiffs are not only likely - but certain - to suffer irreparable injury if the requested preliminary injunction does not issue.
3. The Balance of Equities
In considering whether to grant a preliminary injunction, the Court must "balance the competing claims of injury and ... consider the effect on each party of the granting or withholding of the requested relief." Texas Children's Hosp. v. Burwell,
As discussed, the harm to Ms. Jacinto-Castanon and her sons is obvious and intense. Every additional day of separation *504causes irreparable harm. Lack of information is but one necessary consequence of separation. Another consequence of separation is lasting damage to the children's well-being and their relationship with their mother. And the loss of constitutional freedoms, "for even minimal periods of time, unquestionably constitutes irreparable injury." Mills v. District of Columbia,
Defendants contend that affording the relief sought by plaintiffs in this action - immediate reunification - would interfere with their ongoing efforts to reunify all class members with their children by July 26, 2018, as required by the preliminary injunction issued in the class action pending before Judge Sabraw. See Opp'n at 11-13. They contend that they are devoting significant resources to facilitating compliance for all class members, including Ms. Jacinto-Castanon. A conflicting order from this Court, defendants argue, may impact these compliance efforts.
While defendants have recently advised Judge Sabraw that they are committed to reuniting all of the separated children with their parents by July 26, 2018, see Ms. L. v. U.S. Immigration and Customs Enf't, No. 18-0428, ECF No. 109, at 1 (S.D. Cal. July 15, 2018), defendants previously have asked for partial relief from the timelines set in the class action. The July 26, 2018 deadline for reunification, therefore, is not guaranteed. Moreover, to the extent that defendants' concern stems from limited resources, defendants fail to make any effort to explain how an order requiring reunification of one parent with her sons will hinder their compliance with the class-wide preliminary injunction. Defendants are free to commit more resources to their reunification efforts to compensate for any additional burden required to reunify one parent with her sons, particularly where these family separations were the result of defendants' own decision to adopt a zero-tolerance policy for immigrant families without specifying any basic procedure or plan to facilitate subsequent reunification. Given the gravity of the harm at issue, the need to expend resources cannot outweigh these threats to constitutional rights. The harm to defendants is self-inflicted: defendants embarked on a zero-tolerance policy, bringing misdemeanor charges and separating thousands of children from their parents, without a plan for reunification after the short, time-served sentences for improper entry into the United States.
The Court recognizes that all of the children of class members are suffering irreparable harm. But the record evidence compiled in this case demonstrates that prompt reunification of Ms. Jacinto-Castanon with her sons will not significantly interfere with defendants' efforts to comply with the class action order. The fact is that Ms. Jacinto-Castanon and her sons have met their burden to show that every day of separation is causing serious and potentially permanent harm. The balance of equities therefore favors accelerated reunification of Ms. Jacinto-Castanon with her sons.
4. The Public Interest
The final factor for consideration is the public interest. The public's interest in enforcing the criminal and immigration laws of this country would be unaffected by issuance of the requested preliminary injunction. The Executive Branch remains free to prosecute those who unlawfully enter the United States and institute removal proceedings against them. But the public also has an interest in ensuring that its government respects the rights of immigrants to family integrity while their removal proceedings - or in this case, asylum proceedings - are pending. See League of Women Voters of the United States v. Newby,
C. Removal of Plaintiffs from the United States
Defendants have acknowledged that several immigrant parents have been removed from the United States without their children. See Ms. L. v. U.S. Immigration and Customs Enf't, No. 18-0428, ECF No. 104, at 5-6 (S.D. Cal. July 12, 2018) (confirming that twelve parents have been removed without their children thus far). In view of that reality, Judge Sabraw has issued a temporary restraining order prohibiting the government from removing any parents without their children upon or after reunification until further order of that court. See Ms. L. v. U.S. Immigration and Customs Enf't, No. 18-0428, ECF No. 116 (S.D. Cal. July 16, 2018); see also Mem. Op. & Order, W.S.R. v. Sessions, No. 18-4265, at 30. Consistent with that order, defendants are prohibited from removing plaintiffs from the United States until further order of this Court.
IV. CONCLUSION
By Order issued yesterday, July 18, 2018, the Court granted plaintiffs' motion for a preliminary injunction. Defendants must reunify Ms. Jacinto-Castanon with her sons and must do so on or before midnight on Friday, July 20, 2018. Defendants are prohibited from removing plaintiffs from the United States until further order of this Court.
SO ORDERED.
The Court has reviewed the following documents and accompanying exhibits in connection with the pending motion: Complaint ("Compl.") [Dkt. No. 1]; Plaintiffs' Motion for a Preliminary Injunction ("Mot.") [Dkt. No. 2]; Plaintiffs' Motion for an Expedited Hearing ("Expedited Hearing Mot.") [Dkt. No. 5]; Plaintiffs' Motion for Clarification [Dkt. No. 9]; Defendants' Motion for Extension of Time [Dkt. No. 11]; Defendants' Opposition to Preliminary Injunction Motion ("Opp'n") [Dkt. No. 12]; Plaintiffs' Reply to Preliminary Injunction Motion ("Reply") [Dkt. No. 13]; Defendants' Supplemental Notice ("Def. Suppl. Notice") [Dkt. No. 14]; Plaintiffs' Supplemental Notice ("Pl. Suppl. Notice") [Dkt. No. 15]; July 13, 2018 Status Report [Dkt. No. 16]; and July 18, 2018 Order Regarding Preliminary Injunction [Dkt. No. 46].
The Trafficking Victims Protection Reauthorization Act ("TVPRA"), Pub. L. No. 110-457 (Dec. 23, 2008), provides that "the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of" the Department of Health and Human Services, and its sub-agency, ORR. See
To be clear, Ms. Jacinto-Castanon does not challenge her initial criminal detention pending prosecution for improper entry under
To the extent that plaintiffs' claim is properly analyzed under the "shock the conscience" standard set forth in Cty. of Sacramento v. Lewis,
Not only does forced family separation cause severe emotional harm, but it also forces parents and children to make critical legal decisions in isolation from one another. See United States v. Dominguez-Portillo,
Reference
- Full Case Name
- JACINTO-CASTANON DE NOLASCO v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
- Cited By
- 16 cases
- Status
- Published